Bill to Prevent Destruction of Federal Records Advances in the House

Oct 08, 2014

The House of Representatives, by voice vote on September 16, approved legislation that allows agencies to fire employees who intentionally and maliciously destroy federal records. The measure, known as the Federal Records Accountability Act (H.R. 5170), was introduced in response to the controversy over the Internal Revenue Service’s unauthorized disposal of e-mail records related to the targeting of conservative groups that sought nonprofit status.

“At the national level, two bedrock transparency laws are the Federal Records Act and the Presidential Records Act,” said Rep. Mark Meadows (R-NC), the sponsor of the legislation. “Together, these two laws ensure that our Nation's key documents, whether they be emails, maps, agendas, microfilm, or any other type of media, are preserved, sometimes in perpetuity, as a clear record of the government's operation and decision-making process. Unfortunately, in recent weeks, particularly in relation to the events at the IRS surrounding the loss of Lois Lerner's emails, it is clear that records laws are not being followed appropriately by agencies and their employees.”

Specifically, the bill creates a process for firing federal employees found to have intentionally and maliciously concealed, removed, mutilated, obliterated, falsified or destroyed agency records. Such employees would first be suspended by the agency’s inspector general, offered attorney representation, and provided written notice of the charges made against them within 15 days of the suspension, an opportunity to respond to the charges and submit affidavits, and the chance for a hearing to review their case. Employees that are terminated would have the option to appeal their case to the Merit Systems Protection Board.

In addition, the legislation requires electronic archival of government records, including e-mails and instant messages, for high-level officials. It also requires the appointment of senior agency officials for records management, who would be tasked with ensuring that each agency’s leadership properly complies with federal recordkeeping laws. This includes reporting missing or destroyed records to the National Archives and Records Administration (NARA) and ensuring the public disclosure of such information on the agency’s website.

Furthermore, federal employees would be prohibited from using non-official e-mail accounts to conduct official business. Exceptions are provided when an official e-mail account is included on any such transmissions over unofficial accounts; e-mails sent through unofficial channels are forwarded to official e-mail accounts to be maintained as records; or employees print and properly store complete copies of such e-mails within 15 days of their original transmission.

Despite bipartisan support in the House, it is unlikely the bill will be taken up by the Senate, where Democratic leaders have, among other things, mentioned the partisan nature of the House IRS investigation. In addition, Rep. Elijah Cummings (D-MD), during consideration in the House chamber, noted two obstacles to the legislation being enacted. He said “the bill could have the unintended consequence of encouraging Federal employees to save every email.” He also raised concerns about the way in which the bill “attempts to restrict the manner in which the President and Vice President create records.”

The Washington Policy Brief is an online advisory that contains brief summaries of recent legislative and regulatory issues that may affect the records and information management profession. Further information about the issue is accessed by clicking on the link provided at the end of each summary.

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